First Amendment Censorship Claims Against Stanford Internet Observatory Can Go Forward to Discovery as to Jurisdiction and Standing

From Hines v. Stamos, decided today by Judge Terry Doughty (W.D. La.):

This case stems from Defendants' alleged participation in censoring Plaintiffs' speech on social media. Defendants are "nonprofits, academic institutions, and researchers alleged to have been involved in examining the issue of the viral spread of disinformation on social-media and the resulting harms to society." Plaintiffs are social media users, each with significant followings, who allege that the acts of Defendants caused Plaintiffs' disfavored viewpoints to be censored—namely their speech concerning COVID-19 and elections. As a result of this alleged past and ongoing censorship, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against Defendants….

The court didn't agree with plaintiffs that they had conclusively established that the federal court in Louisiana had personal jurisdiction over defendants—but it did conclude that plaintiffs had sufficiently alleged facts that would justify further discovery as to personal jurisdiction:

To earn jurisdictional discovery, the movant must first make "a preliminary showing of jurisdiction." A preliminary showing does not require proof that personal jurisdiction exists, but "factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts." In other words, Plaintiffs must state what facts discovery is expected to uncover and how those facts would support personal jurisdiction….

Plaintiffs have alleged—to the point of "possible existence"—that the Stanford Defendants effectuated censorship in Louisiana by "assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech's spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation." And as such, Plaintiffs have adequately alleged that the Stanford Defendants' online activities may support personal jurisdiction. Limited jurisdictional discovery is thus necessary to show to what extent Defendants' online activities were "directed" at the forum state.

And the court held that plaintiffs had sufficiently alleged that they had standing to sue (which in this case means that various platforms had restricted their speech because of the defendants' actions, rather than just because of the platforms' own independent decisions), and were thus entitled to further discovery on this as well:

Defendants mainly cite the Supreme Court's ruling in Murthy v. Missouri (2024), for the proposition that Plaintiffs here lack standing because Plaintiffs' alleged injuries are not adequately traceable to the Stanford Defendants. In doing so, Defendants challenge Plaintiffs' ability to show that a "particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." Instead, Defendants reiterate their contention that it was the social media companies' independent idea to censor Plaintiffs' speech—if at all….

First, Defendants err in their appraisal of what Murthy said. Murthy did not say that those plaintiffs did not have standing to maintain suit. Instead, Murthy held that those plaintiffs failed to show standing sufficient for a preliminary injunction. As the instant case does not rely on the higher burden that Murthy demanded, Defendants cannot summarily demand a similar outcome.

Second, neither Missouri v. Biden nor Kennedy v. Biden have been dismissed, as Defendants argue should be done here. In fact, in November of this year, this Court ordered jurisdictional discovery on standing in the Missouri case….

Just as with personal jurisdiction, "District courts may permit jurisdictional discovery to determine whether the court has subject matter jurisdiction." But plaintiffs are "not entitled to jurisdictional discovery if the record shows that the requested discovery is not likely to produce the facts needed to withstand a Rule 12(b)(1) motion." And such jurisdictional discovery is improper "… when the proponent of such discovery only supports the request by conjecture, speculation, or suggestion." Such is not the case here.

Instead, we find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Defendants, through their participation in the Election Integrity Project and Virality Project, caused Plaintiffs to be censored on social media platforms. Specifically, Plaintiffs allege that Defendants were active participants, if not architects, of a vast censorship scheme, and—in collaboration with government officials—actively monitored, targeted, and ultimately induced social media platforms to censor Plaintiffs' speech (among many others). As jurisdictional discovery on the finer points of Plaintiffs' allegations can aid in establishing whether Defendants' conduct is traceable to Plaintiffs' harms, and thus, is "likely to produce the facts needed to withstand a Rule 12(b)(1) motion," such discovery warranted….

[W]e "circumscribe the scope of discovery … to only the factual questions necessary to determine [our] jurisdiction." …

For substantially the same reasons that we deny dismissal—and order jurisdictional discovery in the alternative—above, we do so too with [the Aspen Institute]. Plaintiffs have alleged—to the point of "possible existence"—that Aspen effectuated censorship in Louisiana, and that personal jurisdiction may exist. So limited jurisdictional discovery is thus necessary to show to what extent Aspen's online activities were "directed" at the forum state. As for standing, we similarly find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Plaintiffs' alleged injuries are fairly traceable to the acts of Aspen. Specifically, Aspen is alleged to have a "coordinating role in the EIP/VP's censorship activities challenged herein," or even more personally, "strategizing … to silence Plaintiff Jim Hoft[]," and Plaintiffs attach emails supportive of this alleged censorship coordination to their Complaint. Accordingly, Plaintiffs have "demonstrated the necessity of [jurisdictional] discovery," on the issue of standing as well….

The full list of defendants includes the Stanford Internet Observatory (and Stanford), Graphika, the Atlantic Council and its Digital Forensic Research Lab, the Aspen Institute, and associated individuals.

Keep in mind that these are just preliminary procedural decisions, and the case may eventually get dismissed on jurisdiction/standing grounds, on the grounds that defendants' alleged behavior was purely private action that didn't violate the First Amendment, or on other grounds.

Plaintiffs are represented by John Sauer, whom President-Elect Trump intends to nominate as Solicitor General; Justin Smith (James Otis Law Group, LLC); Julianna Parks (Langley & Parks, LLC); and Gene P. Hamilton, Reed D. Rubinstein, Nicholas R. Barry, Michael Ding, Juli Z. Haller, James K. Rogers, and Andrew J. Block (America First Legal).